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Buckingham v Police

Buckingham v Police

Case [2019] NZHC 855 16 April 2019

Appeal

Jurisdiction

Miscarriage of Justice

Self-Defence

Reasonable Force

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2018-483-13

[2019] NZHC 855

BETWEEN
ELSIE EVE BUCKINGHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 April 2019 via AVL

Appearances:

No appearance for Appellant

C C Wilkinson-Smith and R N Benic for Respondent

Judgment:

16 April 2019

JUDGMENT OF MALLON J

Introduction

[1] Ms Buckingham was convicted of driving in a dangerous manner following a judge-alone trial in the Whanganui District Court.1 She was sentenced to pay Court costs of $130, reparation payments of $300 and disqualified from holding or obtaining a driving licence for a period of three months commencing 10 December 2018.

[2] Ms Buckingham filed an appeal against her conviction and sentence on 10 December 2018. She also requested that her sentence be deferred until after the appeal. The appeal was set down for hearing on 4 February 2019. It has since been adjourned a number of times, most recently to 15 April 2019. Ms Buckingham did not appear at the scheduled hearing on that date, nor at the previous scheduled dates.

1 Police v Buckingham [2018] NZDC 25628. The charge was under the Land Transport Act 1998, s 35(1)(b). It carries a maximum penalty of either three months’ imprisonment or a fine not exceeding $4,500. The court must also disqualify the person from holding or obtaining a driver licence for six months or more. This is subject to s 81 of the Act which allows the court not to order disqualification or order disqualification for a period shorter than six months if there are special reasons relating to the offence

BUCKINGHAM v POLICE [2019] NZHC 855 [16 April 2019]

The respondent seeks that the appeal be dismissed under s 338 of the Criminal Procedure Act 2011.

Dismissal under s 338 of the Criminal Procedure Act

Procedural background

[3] After filing her appeal on 10 December 2018, the procedural history is as follows:

(a)The appeal was initially set down to be heard on 4 February 2019. The appellant’s submissions were due on 21 January 2019. These were not received. On 25 January 2019 the matter was adjourned to 14 February 2019.

(b)Ms Buckingham emailed the Court Registry on 13 February 2019. She wanted a two month adjournment to get disclosure from Whanganui Police about a trespass order she had sought from them against a man who had allegedly stalked and harassed her and who was known to Kate Kellick and Alex McKenzie (the complainants in this case). This information was arguably relevant to the issue of what Ms Buckingham believed to be the circumstances at the time of the alleged dangerous driving incident on 30 January 2018 and therefore relevant to her self- defence argument. Ms Buckingham also said she was seeking a report from a crash report in support of her appeal. The respondent did not oppose the adjournment request but sought a shorter timeframe for the adjournment than the two months that was sought. The parties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buckingham v Police

Details

AGLC: Buckingham v Police [2019] NZHC 855
Case: [2019] NZHC 855
Decision Date: 16 April 2019

CaseChat Overview and Summary

Elsie Buckingham was convicted of driving in a dangerous manner in the Whanganui District Court and appealed against the conviction and sentence to the High Court at Whanganui. The appeal was repeatedly adjourned at the request of Ms Buckingham, who was unrepresented by counsel. The Police applied to have the appeal dismissed for non-compliance with procedural orders. Ms Buckingham did not attend the final hearing date. The Court noted that s 338 of the Criminal Procedure Act provides for the dismissal of an appeal where the appellant fails to comply with procedural orders, subject to the court considering whether to exercise its discretion to dismiss in all the circumstances. The Court found that the non-compliance in this case was not as prolonged or egregious as in other cases where appeals had been dismissed under s 338 and that there was merit in the appeal. The appeal against conviction was allowed on the basis that there was a real risk the outcome of the trial was affected by the District Court Judge’s erroneous view that a u-turn towards the danger could not be an act in self-defence and that the driving was too dangerous to be reasonable force. The sentence was quashed. The Court ordered that if the Police wished to seek a retrial, they were to advise the Court within 14 days.

Orders